Tuesday, February 23, 2010

Non-Places

Only a handful of states require that private malls and other private premises allow public access to their properties for expressive purposes. Among some in that handful, the expression that must be facilitated is limited in some measure (i.e., to gathering petition signatures). The First Amendment and most state constitutional counterparts protect speakers only from the actions of the "state." Of course, the state is often heavily involved in the financing and zoning of large malls. Some malls even house government offices. But according to most courts (and federal "state action" principles) this is not sufficient to implicate constitutional protections. At one point the Supreme Court was willing to treat the shopping mall as the functional equivalent of the town square. But it changed its mind in short order. And these places have been off the First Amendment grid or topography for some time.

In the book I call the product of this situation the "non-place." Insofar as speech is concerned, these places do not exist. They are for tranquil browsing, sitting, exercising -- almost any other human activity except speaking, assembling (even in small numbers), or leafletting. In some of the few places where people still gather in large numbers, speakers can be thrown off the premises for the most inane reasons.

This report describes a not-at-all-uncommon trespass case brought against two mall patrons (a father and son) in New York for wearing anti-war or peace t-shirts reading "Give Peace a Chance" and "No War With Iraq." (Ironically, the shirts were actually purchased at the mall.) Apparently some of the mall's patrons objected to the messages, which were conveyed prior to the invasion of Iraq. A "commotion" ensued. The father, who refused to remove his t-shirt, was arrested for trespass. The Appellate Division upheld the trespass conviction on the ground that the patron did not demonstrate sufficient state involvement in the eviction. The Crossgates Mall thus remains a non-place, safe from the tumult and discord produced by a couple of t-shirts urging peace and diplomacy instead of war.